The Commissioner of Income Tax -II vs. M/s. Treasure Island Pvt. Ltd.,

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 566 of 2012. Reserved on: 5

th November, 2018. Date of Decision: 20

th November, 2018.

Sh. Vishal Sharma …..Appellant.

Versus Shashi Sharma ....Respondent. Coram The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? Yes. For the Appellant: Mr. Munish Kumar Gupta, Advocate. For the Respondent: Mr. Jyotirmay Bhatt, Advocate. Sureshwar Thakur, Judge . The complainant/appellant herein, is aggrieved, by the judgement of acquittal pronounced by the learned Judicial Magistrate 1st Class, Bilaspur, H.P., upon, Case No. 200/2 of 2006, on 31.07.2012, hence has instituted therefrom, the, instant appeal before this Court.

2 2. The facts relevant to decide the instant case, are that during the year 2003, accused Shashi Sharma, who was a registered contractor of P.W.D., and, his close friend entered into an oral agreement for sharing the profits of the business, on 50% basis and as such, the complainant financed the accused and used to deal with all works issued upon the name of the accused. The complainant has submitted that from the year 2003 to 2006, both of them worked jointly and the accused was under a liability of Rs.6,55,000/-, which was to be paid by the accused to him upto August 2006, but he paid only Rs.1 lac through cheque bearing No.072936 dated 25.8.2006, and, for the balance payment he issued another cheque No.789288 dated 30.8.2006 for Rs.5,25,000/- to discharge his legal liability. The said cheque was presented by the complainant with the banker for encashment, but it was dishonoured on the ground of insufficient funds. Therefore, the complainant issued a legal notice to the accused on 7.10.2006 to which the reply was also filed by the accused, but he did not make the payment of any amount. Hence the complaint.

3 3. The learned trial Court, on, finding sufficient material on record, to proceed against the accused, hence, issued notice to the accused. On his appearance before the learned trial Court, notice of accusation for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, stood hence put to him. In proof of the case, the complainant examined two witnesses. On conclusion of recording of the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein he claimed innocence and pleaded false implication. However, he has examined two witnesses in his defence. 4.

On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 5. The complainant is aggrieved by the judgment of acquittal recorded in favour of the accused/respondent, by the learned trial Court. The learned

counsel

appearing

for

the complainant/appellant herein, has, concertedly and

4 vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis- appreciation by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction. 6. On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned trial Court, rather standing based on a mature and balanced appreciation by him, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 7.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. Ex. CW1/B, embodies, the, dishonoured negotiable instrument. The mere factum of dishonour,

5 of, the afore dishonoured negotiable instrument, does rear, a rebuttable presumption, qua, hence it standing issued towards, a, legally enforceable debt or liability, erupting inter se, the complainant and the accused. However, the afore presumption is rebuttable. The evidence to rebut the afore presumption is marshalable, from, Ex. D-2, (i) comprising the cheque book, unfolding qua two cheques respectively bearing No. 789287 and No. 789289 hence being issued therefrom, in the year 2004. (i) The afore cheques book borne in Ex. D-2, stood, exhausted in the year 2004, and, hence the issuance, of, the disputed cheque, much belatedly therefrom, especially in the year 2006, hence, sparks a genuine and valid suspicion qua its issuance, being towards any legally enforceable debt, or, liability inter se the accused, and, the complainant (ii) AND the afore inference is strengthened by the factum, of, the complainant espousing qua the afore apt contractual legal liability, rather standing anchored, upon, a partnership business inter se the complainant and the accused, (iii) and obviously, hence he also espouses qua the outstanding liability arising, from, the afore

6 partnership business, hence being embodied in the dishonoured negotiable instrument. However, neither the income tax returns appertaining to the partnership firm nor bank accounts held in the name, of, the partnership firm, were, adduced into evidence, (iv) thereupon, the vigour of the afore espousal rather wanes as well as subsides, and, the inevitable sequel thereof, is qua the issuance of the dishonoured negotiable instrument, being not towards any legally enforceable debt or liability inter se the accused and the complainant. 9. Furthermore, the scribings of the recitals in Ex.CW2/B, stand testified by the complainant while rendering his testification, borne in his cross- examination, to be rather filled by him, testification whereof, when stands coagulated, with, the factum, of, its issuance hence occurring in the year 2006, whereas, the cheque book, Ex. D-2, wherein, it stands held, rather standing exhausted in the year 2004, (i) hence garners an invincible conclusion, qua, the complainant misusing the afore dishonoured negotiable instrument, and, also his inventing the factum of its issuance, being

7 towards a legally enforceable debt or liability inter se him and the accused. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 11. Consequently, there is no merit in the instant appeal and it is dismissed. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith. (Sureshwar Thakur) 20th November, 2018. Judge. (jai)